comply with the planning code and i'm available. >> i'm sorry they do comply? >> they do comply. that is correct. thank you. >> is there any public comment? seeing none, commissioners, the matter is submitted. commissioner i reviewed the drawings and they reflect what i remember of the proposed changes at that point in time and i'm prepared to move to uphold the permit and condition it on the documentation that has been provided to reflect the changes. is that the appropriate -- >> it sounds like what you want to do is grant the appeal and uphold the permit on the condition that it is revised, to reflect the changes. and i would ask just that plan set be noted by date.

submitted to the board, which is january 10, 2013. >> okay. so moved. >> i'm inclined to move in that direction -- to go in that direction as well based on the testimony of the zoning administrator that it's code compliant. >> the motion has been made if you could call the roll mr. pachecko. ex-we're upholding both permits the demolition and the site. motion from commissioner fung to uphold both permits and the condition is that they -- that the permits be revised with the revised plans dated with our stamp, january 10 2013. >> just the permit to erect the building needs to be revised, not the permit to demolish. >> do you want to separate votes? >> i think you can do one vote.

>> we're upholding the site permit with the revised plan dates january 10. on that motion, from commissioner fung, president hwang? >> aye. >> thank you. commissioner hurtado is absent. vice president lazarus? >> aye. >> and commissioner honda? >> aye. >> thank you. the vote is 4-0 and the demolition permit suprahold as-is and the site performance is uphold with those revised plans. thank you. >> calling item no. 7, appeal no. 12-14 1 gration wu versus the department of building inspection, subject property at 42 lapp hamm way. appealing the imposition of a penalty on november 13th, 2012tor construction work done would you tell us a permit. >> good evening. this is my first time to remodel the house. i hired a contractor. and i followed his instructions

and i didn't know he didn't get a permit. right now i already got the building permit and i'm looking for the electricity and the plumbing contractors so i can get those two permits to fix the property. so i hope you can reduce the penalty for me so i can have more resources to work on though fix this problem. thank you. >> excuse me. did you say you are looking for a replacement contractor? >> yes. >> how are you going to do whether or not the new contractor is able to file the appropriate permits? >> i already asked for recommendations and they are still looking for the proper ones. i haven't gotten one yet, but pretty soon i'm going to have one. >> okay. thank you. >> thanks >> mr. duffy?

. good evening commissioners. congratulations on the new appointments. >> thank you. >> on this case we received a complaint that -- the department received a complaint on the 9th of october, 2012, remodeling done without permit. we did go out. we opened a case on the 11th of october and we tried to get in. we were unable to enter. we left a 3-day notice. it took them until the 31st of october. we wrote a notice of violation and it was remodel of kitchen and bathroom without permits, obtaining permits called for start work inspection on october 31. the applicant then came in on the 13th of november, got an over-the-counter permit to comply with the notice.

i believe the penalty and notice of was nine times on value of is $15,000, so it is in our code to put the nine times penalty on. sometimes we do get them up here with paying the penalties. i would not be against a reduction, of some type. people always make the excuse that they didn't know that they needed a permit. there is a lot of resources in the department to find out if you need a permit or not. there is the website and other ways to find out. you also need a building permit, electrical permit and plumbing permit for this type of work. so i'm available for questions, but the penalty was properly imposed unfortunately. >> mr. duffy, are all of your complaints anonymous? >> no, not all. they are harder to investigate because we don't know where

they are coming from. the complaints online, there is a lot of detail and a lot of people like to remain anonymous. i understand. it's about half-and-half. >> thank you. is there any department made by your department of which particular contractors are doing unpermitted work through the city? do you keep a list? >> i wish we did:no with, we don't. in my experience i have seen the last three or four years, maybe with the economy, things are doing a lot more work without a permit and it annoys me when i hear a contractor didn't get a permit. they are licensed contractors and know for this type of work particularly. there is a loot of investigation time that goes into this and they are not big-money permits so to speak. but we are bound by city charter to investigate the

complaints. there are -- to answer your question, we don't keep a list, but contractors should know about and advise homeowners when this happens. i saw they applied for another permit to legalize some rooms on the ground floor which is not part of the violation and there seems to be a contractor in place on that permit and that permit has not been issued yet. i noticed that before i came up to the meeting. >> what is the name of that contractor? >> homeworks construction service, one bedroom and bathroom at ground floor. that permit has not been issued and still has to be reviewed by the planning department. it will probably be an over-the-counter permit, but there seems like there is somebody on boards anyways >> thank you. >> you are welcome. >> is there any public comment on this item? seeing none, miss wu, do you have anything further to say? have you three minutes of

rebuttal, if you want to use it. okay. commissioners the matter is submitted. >> commissioners i know that the property owner does not own other properties, is not involved in the industry and therefore i would support a reduction of the penalty to the minimum that we can, which is two times. that is my motion. >> okay. mr. pacheco, if you could call the roll please. >> we have a motion from commissioner fung to reduce the subject penalty to two times the regular fee. on motion president hwang? >> aye. >> vice president lazarus? >> aye. >> commissioner honda? >> aye. >> the vote is 4-0 and this

penalty is reduced to two times the regular fee. >> before i call the next item, i'm curious if a mandarin interpreter is in the room? she wasn't expected until 6:00, so we'll call item no. 10, appeal no. 12-104, bashir shahin doing business as marrakech moroccan restaurant, appealing the 30-day suspension of the tobacco sales permit. the reason for suspension, violation of state law and the san francisco health code which proprohibit the indoor smoking of tobacco products. director's case no. smk12-09 and we'll start with the appellant. you have seven minutes >> good evening, my name is bashir shahin, the owner of marrakech restaurant. thank you to the board of appeals for giving us a chance to express our thoughts and feelings. i am not here to argue or ask

for anything unreasonable. just hoping that you will give us some leniency andtry to give us some mercy on this case, which is a small family business, trying to keep our doors open. we have been in business for the last 16 years. i have clean record with all departments. for the last few years we have been hit very hard by the recession and economy and it's been hard to keep our doors as well. we like to comply with the ordinance, with any laws that come through. just this particular matter is kind of confusing and that is why we got into this argument. and we're hoping to resolve it and get better results from this. thank you very much. >> mr. shahin, this case has been continued a number of times. one of the reasons you have brought forth was to exhaust your inventory of tobacco.

has that been accomplished? >> we removed most of the stuff. i bought since the health department allowed me to do the hooka lounge since 2005, i bought inventory and i had to fix the ceiling and put in fans and spent over $40,000 on the place, you know, by the time to get it ready to be a lounge. besides the restaurant that we have. so i am complying with everything that you asked me for, but it takes time to get rid of all of the inventory. i bought a lot of stuff. i need to sell it and i'm just trying to get some leniency to try to sell the rest of the products. and hopefully we'll resolve in a good matter. >> thank you. >> thank you. miss young. >> good evening commissioners. congratulations on the appointments tonight. i am senior health inspector jennine young and work for the

department of health. prior to the department issuing the director's order, which actually suspended the tobacco permit for marrakech for 30 days, environmental health has notified marrakech that smoking and smoking tobacco products inside a restaurant was prohibited by the local health code, as well as the california labor law. and, in fact, we have issued -- the department of environmental health has issued five violations in letter in 2009, a notice to comply letter in 2010 and after i did an inspection in 2011 they received a notice of violation and in 2011 there was an abatement conference held at environmental health. and a decision letter was issued to the owners as well. so all five notices including the decision letter stated the same messages over and over. smoking is prohibited in all restaurants. and it's a violation of the san francisco health code and those

notices stated that smoking tobacco products is pro[h-eubts/]ed in all restaurants and a violation of the carriage labor code. and the continued violation of the san francisco health code and california labor code would jeopardize the dph permits that they held for their facility. in the 2011 decision, the decision letter ordered the owners to immediately cease and desist smoking within the enclosed areas of the restaurant. it also required them to immediately remove all the smoking equipment and devices from the restaurant. so in response to the 2011 decision letter, marrakech has sent an email stating that they stopped serving the hooka and we found out later that was not true. we started to receive complaints in may and june of 2012 and i went out july 21st

and basically conducted another unannounced investigation and i saw one employee was attempted to hide two group of patrons smoking hooka in a private area of the restaurant. i also saw an employee carrying a hooka pipe and when he saw me he turned around and headed down a flight of stairs located in the back of the dining area. then i did go down to the basement level, where they have the hooka pipes and hoses in the storage rooms. and were also open tobacco containers, toric-containing products open as well. based on this investigation she received a second notice of violation and they were ordered to appear at the director's hearing. it was at that hearing that their tobacco permit was supposed suspended for 30 days. i would like to say this hearing was continuesd because they wanted to reduce the inventory.

i observed ten table as round the dining table and there were hooka pipes on all tables. there were about 20 patrons sitting around the tables, they were smoking. they were drinking. they were eating and another 20 plus patrons in the middle of the dining room dancing to [ ing to music. there were several wait staff, serving staff and bartenders, too. so the department really respectfully requests the board to uphold the 30-day suspension, because we provided numerous opportunities for marrakech to come in compliance with the state and local laws. marrakech is a restaurant that had over three years to make change oz their practice n. november, 2011, marrakech acknowledged they would no longer violate the no smoking law, but willingly made the twice to continue violating

both state and local laws. a suspension will not require marrakech to close, because they are a restaurant. the smoking usually starts about 10:30 or so. so they are not going to close:thank you. >> i have a couple of questions for you. >> sure. >> how prevalent is this type of restaurant, where hooka is being smoked throughout the city? like how many are there to nour knowledge? >> left? >> yes >> for restaurants, marrakech and one another. there is a tobacco shop, but they are all in enforcement. there were 18. >> so do you know if the restaurants that had hooka

continue to operate as restaurants that may sell tobacco, but don't have smoking on the premisings? >> yes, they are all racing as restaurants. the ones that closed were tobacco shops and didn't have any other type of business, but the smoking. >> okay. thank you. >> my young, just to confirm, when you said january 13th, you were talking about several days ago? >> yes. >> just a couple of days ago >> you have three minutes for rebeautool. >> the first letter we received was confusing about everybody running the hookeau lounge, which is a cultural thing. they socialize and meet together. it's a different environment.

the first time we complied and stopped everything and said we're going to pull everything out. as soon as i do that, the other places next to us, they start opening hooka lounges and improving and doing bars and putting hookas until today. so it's not fair for us that we were the first people to operate and the second people come after us, they don't shut them down. it's like you allah the taxi to talk on the cell phone, but not allow the bus to talk on the california. it's not fair. why is it only us? i would like anybody to come and see us. we have a 99 score with the health department. so we're not here to cheat anybody or wheat the government or do anything like that. if we came in the wrong way, we

apologize for that. it's not only us. it's a lost people doing that. it's a cultural thing. we need to try to see how we can resolve this. we will stop the hooka and comply with the rules. >> on january 13th do you deny smoking was taking place in your restaurant? >> personally i wasn't there, if she says, so i will not deny that. >> thank you. >> miss young. >> we would only like to say that marrakech is a restaurant with employees. marrakech must comply with both california labor code and the san francisco health code and each time environmental health has visited the restaurant, patrons were not purchasing tobacco products only, but allowed to smoke inside the

restaurant. when i spoke to the owners directly, marrakech owners and operators made the choice to ignore environmental health's warnings and marrakech owners and operators knowingly and willingly continued to violate state laws by allowing their patrons to smoke inside the restaurant. the department does request the board to please uphold the 30-day suspension of the tobacco permit thank you. >> another question. could the department have issued a greater number of days suspension based on the information that you had at the time? >> no. >> thank you. commissioners the matter is submitted.

>> based on the information presented and the factual history and legal standard, i think it's a fairly clear case that the suspension needs to be upheld. >> i concur. >> i think the issue is how many opportunities has he been given? it's not an issue of what should culturally be allowed, but the fact that he has had notice multiple times and i would support the suspension. >> i'll move to uphold the suspension based on the record. >> we have a motion from the president to uphold this 30-day

suspension on the basis of the record provided. on that motion, commissioner fung? >> aye. >> commissioner hurtado is absent. vice president lazarus? >> aye. >> commissioner honda? >> aye. >> thank you. the vote is 4-0. the 30-day suspension is uphold on that basis. >> president hwang i think we're still waiting on the 6:00 arrive of our term. interpreter >> the other three that remain, i don't think any of them would get done in five minutes, so i would suggest a >> welcome to the board of appeals meeting for january 16th, 20 . i have been notified that the interpreter is stuck in traffic and we'll have to move on to another case.

i would like to see a show of hands for item no. 11, appeal no. 12-142, 2nd street merchants, versus department of public works bureau of street-use and mapping. and:00 no. 12, appeal no. 12-142, paawan kothari, doing business as the chai cart. >> anyone here for that item? >> perhaps they are out in the hall. >> let's give them a minute. president hwang, which case would you like to begin with? >> item 12.

is anyone here for item no. 12, the chai cart? i guess we'll go with item no. 11. >> item no. 11, appeal no. 12-142, 2nd street merchants versus dpt of public works bureau of street-use and mapping. this is protesting the issuance on september 28th, 2012 to expresso subito llc mobile food facility sale of espresso drinks. this matter is on for rehearing today. this public hearing was held and closed on november 14th 2012 and at that time a motion to uphold the subject mobile food facility permit did not muster sufficient votes to pass the permit and was upheld by operation of law. we'll start with the attorney

for the appellant. >> good afternoon, commissioners. i think i made four valid points in the briefing and i'm just going to highlight those quickly and yield the rest of my time to the merchants. the first point is the most salient point which is the due process issue. i think the applicant has admitted or has not disagreed that at least two locations, 301 sacramento street and 303 south sacramento street did not receive notice of the permit. and they sort of tried to distinguish between the notice of the permit and the notice of an appeal and i think those are two very separate issues. the public works code says that businesses within a 300' radius are entitled to receive notice of the permit. what is the use of giving a notice of appeal after everything is said and done? the second issue is i believe due to radius services mistake, the whole block was missed

floatfication area and that is because radio services calculates notice the block using the assessor's block as opposed to what is stated in the public works code, which is the mid-point of the block face. can i just go to this overhead real quickly? okay. so where the x is where expresso subito did the 300' radius, but where the little star is the actual block face. so all the businesses down here were not notified and one business that dpw testified to was 101 2nd street and no one from that building received notice. the second point is that dpw testified if starbucks objected we most likely would have denied the parent and we have on record that starbucks did object to the permit. they have not withdrawn their objection and the fact that they are not taking an active

part in this appeal does not mean they did not object to the permit. third, dpw has been misapplying the 300' radius. the order says 300' radius and public works code says [#350-7b8/]' radius and for them to use a 300' walking distance instead of an radius is an arbitrary and capricious application of law. the like foods argument, we just want dpw to get it right next time. they said starbucks sells like food within a 3 off and on' radius and the applicant agrees and let's get it right and say we're using our discretion and there is like foods within 300'. allison rowe, this is subito's truck, which they plan to move

which is sidewalk service. it's odd that they accepted the permit that expressedly prohibits sidewalk service. two, making apples-to-apples comparisons to menus. three, in march, the hearing officer kevin day said there is a saturation in downtown already about coffee, and 41 was removed aored as a location because it's too dense our menu is almost exactly the same as subito's and all of my competitors, because we compete with each other. their discretion could not be exercised without a complete set of facts by dpw at the time of decision. 4, there is no bathroom for use. you can't handle money and food.

that is part of the health code. it's a health hazard not to have a hand washing simpbetween cashiering and foodservice. the map show twos coffee vendors. subito admitted major disclosures and misled the city. the mobile food facility says the permit is valid om if the applicant has not misrepresented facts. >> jim patrick -- three things the bathroom, parking and side door on the truck. the bathroom has not been approved by the owner of the building as specifically sets out in the regulations in the law. the bathroom is not 200' from where the truck is. in fact, it's about a block and a half. you have to go half a block across the street and north half a block and up e